This chapter describes several documents that codes typically require to initiate the legal formation of the company and the accompanying liability; to provide the tribe with the rules the company has agreed will govern it; and to share information with the tribe through annual reports or otherwise. This section can also include procedures for amending documents which were filed with the tribe.

This section provides the process by which a limited liability company becomes an organization. The tribe can outline what information it needs to know about the company and require that information, labeled here as a certificate of organization, to be filed with the tribe. Typically, the company comes into existence at the time the certificate is filed. Some codes allow the person who files the certificate to file the certificate but delay the effective date. In addition, while a person may orchestrate the formation of a company, that person may or may not actually be a part of the company or have any future interest in the company. In such a case where there are no members, the code may provide a window of time to secure at least one member before allowing the company to legally form and assume liability.

The operating agreement is essentially the contract that governs the affairs of a limited liability company. Although many agreements will be in writing, the agreement and any amendments may be oral or in the form of a record. The rules of the limited liability code are the default in the absence of any agreement made in an operating agreement between the parties.

The agreement can include the scope and limits of the company’s, members’, and managers’ powers, rights, and responsibilities, as well as all internal issues. The loyalty, care, and fiduciary duties can be altered or eliminated altogether (except the duty of care which may be governed by a different area of law, such as contract under tribal law), although it should be noted that negotiating these protections can leave weaker parties dangerously vulnerable. This section can potentially allocate extraordinary amounts of power, and it should be noted that those allocations can conflict with other agreements such as a contract between a member and a manager. The operating agreement can provide protections against unshielded mergers, allow members to define the managerial roles, or provide indemnification and exculpation processes.

Since they are binding on all members, amendments must usually be approved by all members unless otherwise provided in the agreement. The code or operating agreement can mandate the unanimous consent of disinterested, independent decision makers to change the operating agreement, or can make the requirement less stringent if there is full disclosure.

The operating agreement is vitally important to the organization and should be developed carefully with a thorough examination by an expert of the effects and implications of establishing each provision.

To ensure the effectiveness of limited liability company operating agreements, the tribe might explicitly state in the code that the limited liability company may enforce its operating agreement.

Members or managers can bring a court action on behalf of themselves or the company regarding their rights against another member, a manager, or the company. To bring an action on behalf of him or herself, the member must have suffered harm beyond that suffered by the company, otherwise they would simply be suing on behalf of the company. Codes vary regarding whether managers and members can sue and under what conditions. The section on court actions lays out those procedures, including the number of votes required to support a court action and whether such votes include members with an interest in the outcome.